RANDA, J.
This is an appeal from an order of the circuit court dismissing Robert A. Bruner’s (Bruner) complaint for failure to join the Department of Justice as a necessary party. We reverse.
FACTS
On July 24, 1980, Bruner filed a complaint alleging that on July 26, 1978, the respondent James G. Kops (Kops) assaulted and battered Bruner causing bodily harm. The complaint further alleged that Bruner received compensation under ch. 949, Stats. Attached to the complaint was an assignment to Bruner by the Attorney General of any claim that the State of Wisconsin or the Department of Justice (Department) might have under sec. 949.15, Stats.
In his answer, Kops moved to dismiss the complaint on the ground that the joinder of the Department was not made as required by sec. 949.15(2), Stats, and therefore, a necessary and indispensable party was not present. Kops contends that the Department could not assign their subrogated claim. Kops further asserts that since Bruner’s cause of action arose before the amendments and additions to sec. 949.15, Stats. (1977),
he is pre-
eluded from relying on the joinder provisions now contained in sec. 949.15.
Lastly, Kops argues that even if Bruner had a cause of action with the Department, the statute of limitations has run as to the Department as a necessary party and therefore Bruner’s claim is also barred.
ISSUES RAISED ON APPEAL
1. Was Bruner’s cause of action governed by sec. 949.15, Stats. (1977) so that after accepting an award thereunder, Bruner relinquished his cause of action?
2. Is the joinder under sec. 949.15(2), Stats, necessary if the Department has assigned its rights?
3. Having failed to join the Department, was dismissal of the complaint the appropriate order?
4. If dismissal was not the appropriate order, was Bruner barred by the statute of limitations from reasserting his claim ?
Because the facts in this case are not in dispute, the only questions presented to this court are matters of law. As to matters of law, this court need not give special deference to the findings of the trial court.
First National Leasing Corp. v. City of Madison,
81 Wis. 2d 205, 208, 260 N.W.2d 251, 253 (1977).
A. Applicable Statute
Kops contends that Bruner’s cause of action accrued under the 1977 version of sec. 949.15, Stats. Kops argues that under the language of sec. 949.15 (1977), once Bruner accepted an award he made an election of remedies and relinquished his
total
cause of action to the Department thus precluding him from bringing this action. We disagree. We hold that sec. 949.15, Stats. (1979 — 80) was meant to have retroactive application. We also hold that the doctrine of election of remedies is not applicable.
Generally, statutes are construed so as to have prospective application.
Wipperfurth v. U-Haul Co.,
98 Wis. 2d 516, 522, 297 N.W.2d 65, 68 (Ct. App. 1980),
aff'd,
101 Wis. 2d 586, 304 N.W.2d 767 (1981). The doctrine of prospective construction does not apply to remedial statutes which may be of a retrospective nature “ ‘pro
vided that they do not impair contracts or disturb absolute vested rights, and only go to confirm rights already existing and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations.’ ”
Mosing v. Hagen,
33 Wis. 2d 636, 641, 148 N.W.2d 93, 96 (1967). Remedial statutes have been defined as “those which afford a remedy, or improve or facilitate remedies already existing for the enforcement of rights and the redress of injuries.” 3 C. Sands,
Statutes & Statutory Construction
§ 60.02 (4th ed. 1974).
An examination of secs. 949.15 and 949.001, Stats. (1979-80) clearly indicates that sec. 949.15 is remedial in nature. A retroactive application of sec. 949.15 would impair no existing rights or obligations. We conclude that sec. 949.15 is to have retrospective application.
Kops argues that Bruner, by accepting an award under sec. 949.15, Stats., made an election of remedies. We disagree. The election of remedies doctrine has been defined “as ‘the act of choosing between two or more different and coexisting modes of procedure and relief allowed by law on the same set of facts.’ ”
Bank of Commerce v. Paine, Webber, Jackson & Curtis,
39 Wis. 2d 30, 36, 158 N.W.2d 350, 352 (1968). [Footnote omitted.] The doctrine’s purpose is to “prevent double redress for a single wrong.”
Id.
A receipt of an award under ch. 949 is not an election of one of several legal theories arising out of one cause of action or a means of double recovery. Bruner is merely seeking relief consistent with that already received under ch. 949. Section 949.15, Stats, clearly states that a victim may seek damages from the person responsible for the injury greater than that paid under the
award order. The Department is subrogated to the victim only for the amount of the award order.
B. Assignment
Bruner argues that any subrogated interest the Department of Justice may have had on Bruner’s cause of action was assigned to Bruner and therefore it was unnecessary to join the Department as a party. We disagree.
Section 949.15 (2), Stats, clearly states that “the claim.ant
shall
join the department” as a party under sec. 803.03(2) (a). [Emphasis added.] Section 803.03(2) (a) provides that “[a] party . . . shall join as parties . . . all persons who at the commencement of the action have ■claims based upon subrogation. . . .” Furthermore, sec. 803.03(2) (c) specifically requires the court to determine whether the Department is subrogated and to “make such ■orders as are necessary to effectuate the purposes of this section.”
It is clear that the whole purpose behind secs. 949.15 (2), 803.03(2) (a) and 803.03(2) (c), Stats, is to require the joinder of persons with subrogation rights. The procedure set out in the statutes is exclusive and cannot be circumvented by an assignment by the Department of its rights and interests. Accordingly, we hold that once Bruner made a claim under sec. 949.15, the Department became Bruner’s subrogee and as a subrogee the Department was a necessary party for joinder purposes in Bruner’s claim against Kops under sec. 949.15(2).
C.
Free access — add to your briefcase to read the full text and ask questions with AI
RANDA, J.
This is an appeal from an order of the circuit court dismissing Robert A. Bruner’s (Bruner) complaint for failure to join the Department of Justice as a necessary party. We reverse.
FACTS
On July 24, 1980, Bruner filed a complaint alleging that on July 26, 1978, the respondent James G. Kops (Kops) assaulted and battered Bruner causing bodily harm. The complaint further alleged that Bruner received compensation under ch. 949, Stats. Attached to the complaint was an assignment to Bruner by the Attorney General of any claim that the State of Wisconsin or the Department of Justice (Department) might have under sec. 949.15, Stats.
In his answer, Kops moved to dismiss the complaint on the ground that the joinder of the Department was not made as required by sec. 949.15(2), Stats, and therefore, a necessary and indispensable party was not present. Kops contends that the Department could not assign their subrogated claim. Kops further asserts that since Bruner’s cause of action arose before the amendments and additions to sec. 949.15, Stats. (1977),
he is pre-
eluded from relying on the joinder provisions now contained in sec. 949.15.
Lastly, Kops argues that even if Bruner had a cause of action with the Department, the statute of limitations has run as to the Department as a necessary party and therefore Bruner’s claim is also barred.
ISSUES RAISED ON APPEAL
1. Was Bruner’s cause of action governed by sec. 949.15, Stats. (1977) so that after accepting an award thereunder, Bruner relinquished his cause of action?
2. Is the joinder under sec. 949.15(2), Stats, necessary if the Department has assigned its rights?
3. Having failed to join the Department, was dismissal of the complaint the appropriate order?
4. If dismissal was not the appropriate order, was Bruner barred by the statute of limitations from reasserting his claim ?
Because the facts in this case are not in dispute, the only questions presented to this court are matters of law. As to matters of law, this court need not give special deference to the findings of the trial court.
First National Leasing Corp. v. City of Madison,
81 Wis. 2d 205, 208, 260 N.W.2d 251, 253 (1977).
A. Applicable Statute
Kops contends that Bruner’s cause of action accrued under the 1977 version of sec. 949.15, Stats. Kops argues that under the language of sec. 949.15 (1977), once Bruner accepted an award he made an election of remedies and relinquished his
total
cause of action to the Department thus precluding him from bringing this action. We disagree. We hold that sec. 949.15, Stats. (1979 — 80) was meant to have retroactive application. We also hold that the doctrine of election of remedies is not applicable.
Generally, statutes are construed so as to have prospective application.
Wipperfurth v. U-Haul Co.,
98 Wis. 2d 516, 522, 297 N.W.2d 65, 68 (Ct. App. 1980),
aff'd,
101 Wis. 2d 586, 304 N.W.2d 767 (1981). The doctrine of prospective construction does not apply to remedial statutes which may be of a retrospective nature “ ‘pro
vided that they do not impair contracts or disturb absolute vested rights, and only go to confirm rights already existing and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations.’ ”
Mosing v. Hagen,
33 Wis. 2d 636, 641, 148 N.W.2d 93, 96 (1967). Remedial statutes have been defined as “those which afford a remedy, or improve or facilitate remedies already existing for the enforcement of rights and the redress of injuries.” 3 C. Sands,
Statutes & Statutory Construction
§ 60.02 (4th ed. 1974).
An examination of secs. 949.15 and 949.001, Stats. (1979-80) clearly indicates that sec. 949.15 is remedial in nature. A retroactive application of sec. 949.15 would impair no existing rights or obligations. We conclude that sec. 949.15 is to have retrospective application.
Kops argues that Bruner, by accepting an award under sec. 949.15, Stats., made an election of remedies. We disagree. The election of remedies doctrine has been defined “as ‘the act of choosing between two or more different and coexisting modes of procedure and relief allowed by law on the same set of facts.’ ”
Bank of Commerce v. Paine, Webber, Jackson & Curtis,
39 Wis. 2d 30, 36, 158 N.W.2d 350, 352 (1968). [Footnote omitted.] The doctrine’s purpose is to “prevent double redress for a single wrong.”
Id.
A receipt of an award under ch. 949 is not an election of one of several legal theories arising out of one cause of action or a means of double recovery. Bruner is merely seeking relief consistent with that already received under ch. 949. Section 949.15, Stats, clearly states that a victim may seek damages from the person responsible for the injury greater than that paid under the
award order. The Department is subrogated to the victim only for the amount of the award order.
B. Assignment
Bruner argues that any subrogated interest the Department of Justice may have had on Bruner’s cause of action was assigned to Bruner and therefore it was unnecessary to join the Department as a party. We disagree.
Section 949.15 (2), Stats, clearly states that “the claim.ant
shall
join the department” as a party under sec. 803.03(2) (a). [Emphasis added.] Section 803.03(2) (a) provides that “[a] party . . . shall join as parties . . . all persons who at the commencement of the action have ■claims based upon subrogation. . . .” Furthermore, sec. 803.03(2) (c) specifically requires the court to determine whether the Department is subrogated and to “make such ■orders as are necessary to effectuate the purposes of this section.”
It is clear that the whole purpose behind secs. 949.15 (2), 803.03(2) (a) and 803.03(2) (c), Stats, is to require the joinder of persons with subrogation rights. The procedure set out in the statutes is exclusive and cannot be circumvented by an assignment by the Department of its rights and interests. Accordingly, we hold that once Bruner made a claim under sec. 949.15, the Department became Bruner’s subrogee and as a subrogee the Department was a necessary party for joinder purposes in Bruner’s claim against Kops under sec. 949.15(2).
C. Dismissal of the Complaint
The trial court dismissed Bruner’s complaint on the basis of Bruner’s failure to join the Department as a necessary party. Failure to join a necessary party under secs. 803.03
and 949.15(2), Stats., is not a basis for dismissal without an examination by the trial court pursuant to sec. 803.03 (2) (c). Under this section, the trial court must inquire as to the Department’s subrogation interests to determine if an award has been made pursu
ant to ch. 949 and then “make such orders as are necessary to effectuate the purposes of this section.” The trial court’s obligation is further defined by sec. 803.08(8).
Having found that Bruner had failed to join the Department as required by sec. 949.15, Stats., the trial court should have followed the procedure set forth in sec. 949.15 and 803.03. Because the trial court did not follow that procedure, we must reverse.
D. Statute of Limitations
Bruner was required by sec. 949.15(2), Stats., to join the Department as a party under sec. 803.03(2) (a). Kops contends that since the statute of limitations now bars the Department’s claim, Bruner’s claim is also barred.
Under the reasoning of
Heifetz v. Johnson,
61 Wis. 2d 111, 211 N.W.2d 834 (1973), Bruner’s failure to join the Department would only bar the Department’s claim. In
Heifetz,
Heifetz had been injured in a 1968 automobile collision with the defendant resulting in personal injuries to Heifetz. Heifetz received $2,000 for medical expenses from his insurer, Heritage, and in return executed a “subrogation receipt and assignment” to Heritage in 1969. Heifetz then brought a personal injury action against the defendant 11 days before the statute of limitations was to run, without joining the insurer as a plaintiff. After the 11 days had passed, the defendant moved for summary judgment, contending that Heritage was an indispensable party to the action and that failure to join Heritage before the running, of the statute of limitations was ineffective to toll the statute even as to those plaintiffs already found in the action.
Noting that in Wisconsin the running of the statute ■of limitations extinguishes not only the right of action but also the cause of action, our supreme court held that although Heritage was initially an indispensable party, the statute of limitations had effectively, barred Heritage from asserting its cause of action thereby stripping it of indispensable status.
Id.
at 124-25, 211 N.W.2d at 841. Therefore, Heifetz’ cause of action was not barred.
See Kochel v. Hartford Accident & Indemnity Co.,
66 Wis. 2d 405, 225 N.W.2d 604 (1975).
Kops contends, however, that because of the specific language of sec. 949.15(2), Stats, which requires that the claimants “shall join the department as a party,” the Department must remain an indispensable party despite the language of
Heifetz.
Therefore, Bruner’s failure to join the Department before the running of the statute of limitations bars both Bruner’s and the Department’s claim. We disagree.
The position taken by the court in
Heifetz
has been superseded by the enactment of sec. 803.03(2) (a), Stats. Section 803.03(2) (a) requires the joinder of persons who at the commencement of the action possess part of the original cause of action by means of subrogation, derivation or assignment. The legislature by referring to subrogation, derivation or assignment as “parts of the claim in chief,” makes it clear that there is only one cause of action. The Judicial Council Committee’s Note, 1974, states that subsection (2) “is intended to foster economy of judicial effort by requiring that all ‘parts’ of a single cause of action whether arising by subrogation, derivation, or assignment, be brought before the court in one action.”
Charles A. Clausen and David P. Lowe in their article
The New Wisconsin Rules of Civil Procedure,
59 Marq. L. Rev. 1, 89 (1976), persuasively argue that sec. 803.03 (2) (c) “also makes it clear that the entire claim, including all of its constituent parts, is effectively commenced with the filing of one summons by the principal claimant.” They continue:
At the scheduling and pre-trial conferences, the judge assigned to the case “shall inquire concerning the existence of and joinder of persons with subrogated, derivative, or assigned rights and shall make such orders as are necessary to effectuate the purposes of this section.” If the new rules were to recognize the
Heifetz
and
Kochel
holdings with reference to the statute of limitations, the judge would be unable to order the joinder of a party possessing a subrogated, assigned or derivative part of the principal claim if the statute of limitations had run between that time and the commencement of the principal action. But the rule recognizes no such limitation. Thus, the new rules provide a clear basis for a change in the rulings of
Heifetz
and
Kochel
with respect to commencement of actions in those cases where a claim is split. [Footnote omitted.]
Id.
at 89-90.
We conclude that under sec. 803.03(2) (a), Stats., Bruner by bringing his principal claim tolled the statute of limitations as to the Department’s subrogated claim, and was not barred from bringing this action.
By the Court.
— Order reversed.